Bhima Koregaon: Gonsalves and Ferreira application parses evidence supplied and not supplied per Section 207 CrPc

On May 23, 2022, a National Investigation Agency court had directed the agency to furnish a chart consisting of the details of electronic devices seized in the case to be supplied to accused persons, which has not been complied with. 

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ON Wednesday, Vernon Gonsalves and Arun Ferreira filed an application containing a chart on the electronic evidence relied upon by the prosecution.

Gonsalves is a trade unionist and activist and Ferreira is a lawyer and activist. The duo is accused in the Bhima Koregaon–Elgar Parishad Maoist links and criminal conspiracy case.

Both the accused had been held in custody since August 2018 on allegations of involvement in offences under the Unlawful Activities (Prevention) Act, 1967 (UAPA). On July 28, they were granted bail by the Supreme Court, considering their long incarceration without trial.

The chart depicts the portion of cloned copies of the electronic evidence which has been furnished to the accused and the portion of cloned copies of the electronic evidence which is yet to be furnished in accordance with Section 207 of the Code of Criminal Procedure, 1973.

Section 207 provides for supply to the accused of police reports and other documents relief upon by the prosecution, in accordance with principles of natural justice.

The application is significant because evidence allegedly collected from the electronic devices forms the centrepiece of the prosecution's case.

In 2021, Arsenal Consulting, a leading, independent expert firm on digital forensics, revealed in four reports that sophisticated malware was used to plant the digital evidence that forms the basis for the prosecution's case on the devices of two of the accused persons in the case, Surendra Gadling and Rona Wilson.

A National Investigation Agency (NIA) court of special judge Rajesh Kataria is hearing the plea for the NIA to comply with Section 207 of the Code of Criminal Procedure (CrPC).

During previous hearings, the accused persons have raised the grievance that despite filing several applications with the investigating authorities under Section 207 of the CrPC, they had not been allowed access to the compact disks which are an important piece of evidence furnished by the NIA in the case.

On September 5, the NIA court had directed the NIA to comply with the Order, dated May 23, 2022, of the predecessor judge of the NIA court, who had directed the agency to furnish a chart consisting the details of electronic evidence cloned copies of which have to be supplied to the accused persons.

On September 18, however, special public prosecutor Shrikant Sonkawade, appearing for the NIA, provided the accused persons with annexures of electronic evidence from the Regional Forensic Science Laboratory (FSL), Pune.

On October 18, the NIA filed an affidavit stating that it has provided copies of all materials relied upon by it to the accused persons.

It is this claim which the new application of Gonsalves and Ferreira challenges.

The matter is posted for further hearing on November 23.

Application 

The application filed by Gonsalves and Ferreira refers to the Order of the NIA court dated May 23 last year.

The Order mandates the investigation officer to produce a chart containing details such as the FSL case number, exhibit number of devices, hash value of device and hash value of forensic image.

The application claims that NIA's affidavit is silent on the main issue of providing all accused with cloned copies of all the electronic devices or documents which have been shown in the chargesheets and additional evidence to be relied upon by the prosecution.

The NIA has also not made any statement regarding such cloned copies not provided to the accused persons, the application states.

The application submits that the chart in the present application was submitted due to the inordinate delay of the NIA to comply with the Order dated May 23 last year.

The application adds that the NIA needs to produce the chart required by the court despite the two accused submitting their own chart on the issue.

The application prays for the court to direct the investigation officer(s) to furnish a chart as mandated and the cloned copies of all documents proposed to be relied upon by the prosecution.

Background

In connection with the Elgar Parishad–Bhima Koregaon case, on June 6, 2018, Pune police arrested several activists, lawyers and academics.

These included human rights lawyer and Dalit rights activist, Surendra Gadling; Dalit rights activist and editor of the Marathi magazine Vidrohi, Sudhir Dhawale; activist and researcher, and member of the Committee for the Release of Political Prisoners, Rona Wilson.

Former head of the English department at Nagpur University, and Dalit and women's rights activist, Shoma Sen; and forest rights activist and former fellow of Prime Minister's Rural Development Fellowship Programme of the Union Ministry of Rural Development, Mahesh Raut were also arrested.

On August 28, 2018, activist, poet, writer and teacher Dr P. Varavara Rao; trade unionist, activist and lawyer, Sudha Bharadwaj; Arun Ferreira; Vernon Gonsalves; and human rights activist and journalist, Gautam Navlakha were arrested and lodged in Mumbai's Taloja jail.

In the subsequent months, scholar, writer and civil rights activist, Dr Anand Teltumbde; tribal rights activist and Jesuit priest, Father Stan Swamy; an anti-caste activist, Hany Babu; and musical performers, anti-caste activists and members of the cultural troupe Kabir Kala Manch, Sagar Gorkhe, Ramesh Gaichor and Jyoti Jagtap, were also arrested.

Trial is yet to begin in the Bhima Koregaon case. The prosecution in the case has filed a chargesheet exceeding 5,000 pages and intends to cross-examine at least 200 witnesses.

Ten of the 16 accused persons are presently incarcerated, having now spent two to almost five years in judicial custody without trial.

In addition to Gonsalves and Ferreira, who were granted bail on July 28, three of the other accused persons, Sudha Bharadwaj, Varavara Rao and Anand Teltumbde have also managed to secure bail so far.

Another accused, tribal rights activist and Jesuit priest Father Stan Swamy, passed away in judicial custody in July 2021 after contracting Covid in prison while awaiting bail on medical grounds.